Jackson v. Jackson

Decision Date18 May 1948
Docket Number33110.
Citation193 P.2d 561,200 Okla. 333,1948 OK 122
CourtOklahoma Supreme Court

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by Virginia Jackson against Alfred Jackson for divorce wherein the defendant filed a cross-petition and a judgment was entered for defendant on his cross-petition granting divorce and ordering that the care and custody of infant child be confided to the defendant. From an order denying the plaintiff's motion for modification of judgment with reference to custody of child, the plaintiff appeals.

Order affirmed.

Syllabus by the Court.

1. In awarding the custody of a minor child of divorced parents the welfare of the child is the paramount question for the court to consider.

2. The modification of a decree for the care and custody of a child of divorced parents must be based on some change in circumstances occurring since rendition of the decree or on some fact unknown at the time of the decree.

Howard K. Berry, of Oklahoma City, for plaintiff in error.

Gordon G. McBride and C.J. Pinkston, both of Oklahoma City, for defendant in error.

WELCH Justice.

Virginia Jackson filed suit for divorce against her husband, Alfred Jackson. The defendant filed answer and cross-petition. At the trial of the case both parties were present and each represented by counsel and both parties introduced testimony. Judgment was entered for the defendant on his cross-petition granting divorce and ordering that the care, custody and education of the two and one half year old female child of the parties be confided to the defendant. No appeal was taken and the decree of divorce became final.

This is an appeal from an order overruling a motion to modify the decree with reference to the custody of the child. The hearing on the motion was had approximately one year after the original order and judgment and at a time when the child was approximately three and one half years old.

The testimony offered in this hearing in support of the motion concerns the care and treatment of the child by the defendant since the divorce. It was shown that the defendant had left the child with his sister-in-law at varying times during his work hours and that he had last left the child with his mother with whom he had established a home and while he was away in the pursuit of his employment.

It does not appear that the child has suffered from such care or from any harmful association since the award of custody to defendant as to justify modification of the decree, or that defendant has been guilty of such neglect or improper course of conduct as to indicate that he is not a proper person to rear the child.

In this appeal plaintiff makes no contention based on a showing of change in the condition of either of the parties or in their habits, character and fitness to have custody and care of the child, occurring since entry of the divorce decree. Plaintiff contends the trial court ignored the best interests of the child and gave consideration only to the interests and claims of the parents in awarding custody to defendant. Argument is presented based on the age and sex of the child and plaintiff's motherhood. It is asserted that the record in the divorce case and herein does not show that the plaintiff was immoral or otherwise an unfit and improper person to have custody of her child.

It is apparent that the age, sex and relationship of the child to the parties was known to the court at the time the divorce was granted. The decree fixing the custody of...

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